- Associated Press - Friday, February 6, 2015

OMAHA, Neb. (AP) - The Nebraska Supreme Court on Friday tossed the conviction and prison sentence of a man accused of shooting into an unoccupied sheriff’s cruiser, signaling that prosecutors botched the case by failing to present evidence to support the weapons charge against him and declaring that he could not be tried again.

But the ruling doesn’t clear Trent Esch, who was accused of firing several bullets at a Custer County sheriff’s vehicle while it was parked at a deputy’s home in March 2012. The high court upheld Esch’s conviction of felony criminal mischief in the case and his sentence of up to three years in prison on that charge.

No one was injured in the shooting, but prosecutors said Esch had a personal vendetta against the deputy, who had arrested Esch on suspicion of violating probation. Esch was originally found guilty in 2013 of felony criminal mischief and using a weapon to commit a felony.

Last year, the Nebraska Court of Appeals cited faulty jury instructions in vacating Esch’s sentence for criminal mischief. And because the weapons-use count was contingent upon the felony criminal mischief charge, the appeals court also vacated the weapon-use conviction.

Esch was retried and again found guilty of the weapon count. He was then sentenced to between five and seven years in prison for the weapons count, and up to three years for the criminal mischief count.

But the Nebraska Supreme Court agreed with Esch that prosecutors failed to present any evidence at Esch’s second trial on the weapons count. The high court rejected state prosecutors’ arguments that Esch invited the error by failing to object to prosecutors’ belief that the weapon-use conviction would be automatically reinstated once the felony criminal mischief sentence was settled.

“Esch’s alleged failure to object did not relieve the state of its duty to introduce sufficient evidence to prove the elements of the crime beyond a reasonable doubt at the new trial,” Justice Lindsey Miller-Lerman wrote for the high court.

The state Supreme Court also determined that double jeopardy applies, meaning Esch cannot be tried on the weapons count again.

Because Esch was given credit for nearly two years he had already served and automatic “good time” calculations that can cut actual time served by half, it’s unclear whether Esch has more time to serve behind bars or must be released immediately. Nebraska Attorney General spokeswoman Suzanne Gage said state prison system officials will determine Esch’s sentence following Friday’s ruling.

Esch’s attorney did not immediately return a message left Friday seeking comment.

Custer County Attorney Steven Bowers said he had not had time to review the opinion but would comment later.


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